Экзамен зачет учебный год 2023 / Ramaekers, EU Property Law

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attractive than domestic mortgage loans. This could be seen as a hindrance to the free movement of services, resulting from the application of the lex rei sitae rule which does not allow for the creation of a foreign mortgage right on immovable property within the host Member State.

It is not just financial services that are relevant here. Advocate-General Geelhoed explained in his opinion in the Reisch case that national law prohibiting a person to use immovable property as a secondary residence not only contradicts the free movement of capital but also of services. A secondary residence might be used by the owner to rent out to others during the time that he himself does not occupy it. This is a service that the owner could not provide if the owner were obliged to use the building as primary residence. Furthermore, by acquiring an immovable object, the owner not only becomes a potential service provider but also a potential receiver of services. This could be services connected with the building itself, such as maintenance or construction work or services relating to tourist activities.196 In this way, the free movement of services facilitates the acquisition of immovable property in a similar way as the free movement of capital does.197 It therefore has an indirect effect on national property law in the sense that the acquirer of the immovable has more freedom to make use of his right of ownership of the immovable due to the application of the free movement rules than he would have had under the national law.

5.4.The Effect of the Free Movement of Services on National Property Law

If the free movement of services rules indeed facilitate the acquisition of immovable property like the rules on free movement of capital do and extend what an owner of that property can do with it beyond what would have been allowed under national law – like using the property as a holiday home as opposed to a primary residence – then the freedom of services rules and the Parodi judgment of the CJEU affect the content of a national property right. Furthermore, if it is indeed the case that the lex rei sitae rule in combination with the national numerus clausus makes it impossible for financial service providers and recipients to conclude a cross-border mortgage loan on the basis of the law of the home Member State, rather than the host Member State, then those rules may be affected by the application of the free movement of services.

6.Free Movement of Persons

The right to free movement of persons is contained in Article 20(2)(a) TFEU, which states that ‘[c]itizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States’. Free movement for workers

196A.-G. Geelhoed’s Opinion to Reisch, paras. 31-33.

197See the series of cases on free movement of capital and the acquisition of immovable property discussed in section 4.3.

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specifically has been laid down in Article 45 TFEU (ex Art. 39 EC). The free movement of persons is worked out in detail in Directive 2004/38/EC.198

6.1.Discrimination or Market Access Test: a de Minimis Requirement in Free Movement of Persons?

The Court applies a market access test in the area of free movement of persons as well as to the other freedoms.199 Furthermore, as with the other freedoms, a de minimis requirement only seems to be applied to non-discriminatory national measures, which may nevertheless hinder access to the market of the host Member State. Both Advocate-General Fennelly and the CJEU itself explicitly dealt with this in the Graf case.200 Just as with the free movement of services, the Keck distinction between product characteristics and selling arrangements is not applied to the free movement of persons. However, the reasoning of the Court behind the Keck distinction, namely the removal of non-discriminatory measures that do not substantially hinder access to the market from the scope of application of the rules on free movement, may also underlie the application of a de minimis requirement for non-discriminatory measures in the other freedoms, including the free movement of persons.201

Interestingly, the case Corsica Ferries France provides a very explicit statement by the CJEU that there is actually no de minimis requirement in any of the four freedoms:

‘As the Court has decided on various occasions, the articles of the EEC Treaty concerning the free movement of goods, persons, services and capital are fundamental Community provisions and any restriction, even minor, of that freedom is prohibited.’202

However, this case was decided before the development from a discrimination test to a market access test really took place. It is safe to say that those developments nuanced the Court’s statement in Corsica Ferries.

198[2004] OJ L 158/77.

199Case C-415/93, Bosman [1995] ECR I-4921, para. 96; case C-19/92, Dieter Kraus v Land BadenWürttemberg [1993] ECR I-1663, para. 32; case C-464/02, Commission v Denmark [2005] ECR I- 7929, paras. 34-36. See also Craig & De Búrca 2011, p. 730-732.

200Case C-190/98, Volker Graf v Filzmoser Mashinenbau GmbH [2000] ECR I-493. A.-G. Fennelly at para. 32 of his Opinion; the CJEU at paras. 24-5 of its judgment.

201Barnard 2010, p. 242 et seq., with further references there.

202Case C-49/89, Corsica Ferries France v Direction générale des douanes françaises [1989] ECR I- 4441, para. 8. See, for instance, also case 167/73, French Merchant Seamen [1974] ECR 359, para.

46:‘It thus follows from the general character of the prohibition on discrimination in Article 48 [EEC] and the objective pursued by the abolition of discrimination that discrimination is prohibited even if it constitutes only an obstacle of secondary importance’.

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6.2.Obstacles to the Free Movement of Persons

Citizens of the European Union have the right to move and reside freely within the territory of the Member States. This right is granted to them by Articles 20(2)(a) and 21(1) TFEU and by Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.203

The differences between the national systems of property law could lead to obstacles for persons making use of their freedom to move. A corollary to the right to move and reside freely in other Member States would have to be the right to freely acquire immovable property.204 With regard to the free movement of establishment, this corollary right to acquire immovable property has been recognized by the CJEU.205 It is currently laid down in Article 50 TFEU:206

‘1. In order to attain freedom of establishment as regards a particular activity, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall act by means of directives.

2. The European Parliament, the Council and the Commission shall carry out the duties devolving upon them under the preceding provisions, in particular:

[…] (e) by enabling a national of one Member State to acquire and use land and buildings situated in the territory of another Member State, in so far as this does not conflict with the principles laid down in Article 39(2)’. [emphasis added]

Advocate-General Geelhoed stated in his Opinion in the Reisch case207 that it should not matter, whether a building is acquired to be used as a secondary residence or a primary residence:

‘A private individual acquiring a secondary residence may do so, firstly, with the aim of occupying it himself for part of the year. Activities relating to the free movement of persons will then be in issue: (the right of) residence in another Member State. Although secondary residences are usually occupied for only a limited period of the year, such occupancy none the less has something permanent about it.’208

203[2004] OJ L 158/77.

204Cf Bright & Bright 1998, p. 365.

205Case 305/87, Commission v Greece [1989] ECR 1461, para. 22: ‘In particular, as is apparent from Article 54(3)(e ) of the [EEC] Treaty and the General programme for the abolition of restrictions on freedom of establishment of 18 December 1961 (Official Journal, English Special Edition, Second Series IX, p. 7), the right to acquire, use or dispose of immovable property on the territory of a Member State is the corollary of freedom of establishment.’ See also case C-302/97, Konle, para. 22.

206Ex Art. 44 EC. See also Bright & Bright 1998, p. 365.

207Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C-540/99, Reisch and others [2002] ECR I-2157.

208A.-G. Geelhoed’s Opinion to Reisch, para. 31.

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Therefore, national rules such as the ones discussed under the free movement of capital, which restrict an acquirer of immovable property in the use of that property,209 can also be seen as a hindrance to the free movement of persons.

Other problems arise when a person acquires a property right in relation to an object by way of succession. Consider the following example: a French person domiciled in Paris at the time of his death leaves a right of usufruct over his car to his daughter, who lives in London. The car is situated in London at the time of death of the testator. According to English private international law movable assets devolve in accordance with the lex domicilii of the deceased.210 The lex domicilii in this example is French law. This means that French law governs the right of usufruct created in relation to the car which is situated in England.

If this situation had not been one of succession but one of transfer inter vivos, it would not have been possible to create a right of usufruct in relation to the car: English law would have applied as the lex rei sitae and the English numerus clausus does not know a right of usufruct. If the usufruct had been created while the car was still in France and the car had only afterwards been driven to England, the French right of usufruct would either be transformed into an equivalent right under the English numerus clausus or would not be accepted in England and therefore would have been lost at the border. It is not quite clear whether or not this is also what happens to a foreign usufruct that enters England under a will. The adherence to the lex domicilii as opposed to the lex rei sitae suggests that the usufruct would in any event be recognized as validly created by the testator and acquired by his daughter under French law. Whether the French usufruct could also be enforced by the testator’s daughter in England remains to be seen. It would appear that this would not be possible if the object was not a car but land situated in England, because succession to immovable property is governed by the lex rei sitae.211 The Regulation on international succession212 would bring a change in that respect, as it would abolish the lex rei sitae rule for succession to immovable property. This would mean that ‘English courts [might be required] to recognize and enforce a French usufruit over land in England’.213 One might deduce from the fact that the lex domicilii, and not the lex rei sitae, is applied to successions to movable property that the attitude to recognition and enforcement of foreign property rights over movable objects is different and that – to return to our example – the testator’s daughter might be able to enforce her French right of usufruct over the car in England. It has however proven difficult to find legislation or case law which confirms this.

The Commission considers the fact that persons have difficulties asserting rights acquired under a will in the context of an international succession to constitute a hindrance to the free movement of persons. This follows from its 2009

209Supra, at section 4.3.

210Garb & Wood 2010, p. 243 at 15.99 and 15.102.

211Garb & Wood 2010, p. 243 at 15.99 and 15.102.

212Regulation 650/2012/EU on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107. More about this Regulation in Chapter 4.

213Garb & Wood 2010, p. xxxvi.

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Proposal for a Regulation on international successions.214 These difficulties arise because rules of Member States governing international successions differ and the Regulation – which has in the meantime become law215 – therefore purports to eliminate the obstacles to the free movement of persons that arise out of those differing national laws, thereby enabling ‘people living in the European Union to organize their succession in advance and effectively to guarantee the rights of heirs and/or legatees and of other persons linked to the deceased, as well as creditors of the succession.’216 The Impact Assessment attached to the Proposal shows that an estimated 450,000 successions in the EU have an international dimension.217 An international dimension can arise if the deceased’s property is located in more than one Member State, if the deceased had a different nationality from the Member State of his last habitual residence or if the potential heir lives in a different Member State than the testator. Given that approximately eight million EU citizens have made use of their right to free movement, the likelihood that a succession has an international dimension increases.218 Heirs in international successions are faced with legal uncertainty, increased costs and time delays. The Impact Assessment refers to examples of heirs having to renounce their rights to a succession because their enforcement in another Member State would have been too expensive.219 The Impact Assessment calculates an estimated cost of international successions of four billion Euro per annum to EU citizens.220 If the status quo is maintained, those costs are estimated to double within a period of ten years,221 resulting in a potentially significant hindrance to the free movement of persons. The Regulation on international successions might be able to reduce that hindrance.

6.3.The Effect of the Free Movement of Persons on National Property Law

The Regulation on international successions could have an impact not only on the national private international rules governing successions (such as the lex rei sitae and the lex domicilii) but also on the national numerus clausus of the Member States, which would be faced with foreign property rights acquired in a succession. According to Salla Saastamoinen, Head of the civil justice unit, DG Justice, Freedom

214Proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession, COM(2009) 154 final. See Preamble at Recital 6, and the Explanatory Memorandum to the Proposal at 1.2.

215Reg. 650/2012/EU, [2012] OJ L 201/107.

216Explanatory Memorandum to the Proposal, at 3.1. Legal basis.

217Impact Assessment at 3.3. Scope of the problem. See also Gaillard & Trautman 1987, p. 313 and fn. 11: ‘[R]eports of the practice before notaries contain numerous examples of trusts used for purposes of succession to immovables in civil-law countries. […] In France, for example, public notaries report about 100 cases a year involving trusts having to do with immovable assets located in France.’

218Ramaekers 2012, p. 1.

219Impact Assessment at 3.3.

220Impact Assessment at 3.3.

221Impact Assessment at 4.1. How would the problem evolve, all things being equal?

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and Security, of the European Commission at the time the Proposal for the Regulation came out, succession is considered to be property law, not family law.222 Furthermore, the free movement of persons could affect national property law in a similar way as the free movement of capital and the free movement of services

could, given that a corollary to the right to move and reside freely within the EU, enjoyed by all EU citizens, is the right to acquire immovable property in another Member State. Any national restrictions concerning the acquisition of immovable property may fall foul of the rules on free movement of persons.

7.Justification Grounds

Once it has been established that the four freedoms apply to rules of property law, and that those rules directly or indirectly, actually or potentially hinder free movement within the internal market, a Member State can attempt to maintain its national legislation by invoking a ground for justification. It is important to deal with a particular case in this order: it must first be determined whether the free movement rules apply; then it must be determined whether they are infringed by the national measure (e.g. a rule of property law); finally, it must be determined whether or not that national measure can be justified. If the application of the free movement rules is denied at the outset because of a ‘too indirect and uncertain’ effect on the internal market,223 something which, as we have seen in this chapter, should only be taken into account in the case of a non-discriminatory measure which restricts access to the market or because the national law is highly likely to be justified anyway, one foregoes what Klauer calls the ‘signal function’ of the application of the free movement rules:

‘A review, whereby an obstacle to the internal market is determined, but which nevertheless declares this obstacle to be justified on the basis of mandatory requirements in the public interest, is not at all a useless exercise. It is exactly these cases that possess an important signal function, in that they point out where private law does not comply adequately with the internal market and at what point potential harmonisation efforts should be initiated.’224 [translation ER]

In other words, it is important to establish first whether a national rule falls within the scope of application of the free movement provisions, and whether the free movement is hindered by the national measure, before discussing the justifiability of the national measure. Only by following these steps can obstacles to the internal market be discovered, even if they are justifiable for the moment and can the

222Ramaekers 2012, p. 2. See also the Explanatory Memorandum to the Regulation, at 3.1. Legal basis.

223The Court took this route in Krantz: supra, section 3.4.4.

224Klauer 1998, p. 73-74: ‘[E]ine Überprüfung, die ein Hindernis für eine Grundfreiheit konstatiert, dieses Hindernis jedoch aus zwingenden Allgemeinwohlinteressen für gerechtfertigt erklärt [ist] keineswegs vergebene Mühe. Gerade solche Fälle besitzen eine wichtige Signalfunktion, indem sie darauf hinweisen, wo es an der Funktionsadäquanz des Privatrechts für den Binnenmarkt fehlt und an welcher Stelle eventuelle Harmonisierungsbemühungen ansetzen sollten.’

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Commission decide whether or not to take legislative action to remedy these obstacles.

If a Member State invokes a justification ground, the CJEU evaluates it on the basis of two criteria: whether the national rule pursues an aim which constitutes a mandatory requirement in the public interest; and whether the rule is proportionate to the aim pursued. The proportionality test will be dealt with separately in section 7.1. It is moreover important to keep in mind that grounds for justification must be analysed on a case-by-case basis. It can therefore not be said that if a particular justification ground has been accepted by the CJEU once that it can always be relied on in the future.

Several justification grounds could be, and have been, invoked. For directly and indirectly discriminatory measures, only the limited list of justifications as provided in the Treaty applies. Article 36 TFEU offers a set of justifications that may be used by a Member State to justify a measure infringing the free movement of goods.225 Articles 45, 52 and 65 contain similar provisions for the other freedoms. One possible justification ground is public policy. Public policy is of special relevance for property law because of the mandatory character of many property law rules, the numerus clausus, the closed list of property rights, in particular. The numerus clausus limits parties in the creation of property rights: it determines what property rights they can create, how to create them and what the content can or cannot be. In many legal systems the mandatory character of property law is achieved by determining that the rules are of public policy. As a result, parties may not deviate from them by contract.226 Rules of private international law are often also rules of public policy. The private international law rule lex rei sitae is almost always of public policy, so private parties cannot deviate from it. It can therefore be assumed that Member States would offer public policy as a justification ground for maintaining their rules of property law.227 It must be noted, that this concerns public

225Art. 36 (ex Art. 30 EC) reads: ‘The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.’

226Perhaps the best example of this is offered by French law in Art. 6 Code civil, which states: ‘On ne peut déroger, par des conventions particulières, aux lois qui intéressent l’ordre public et les bonnes moeurs’ (One may not deviate, by private agreement, from the laws that concern public policy and good morals [translation ER]). See also Art. 3 Code civil: ‘Les immeubles, même ceux possédés par des étrangers, sont régis par la loi française.’ (Immovables, even those possessed by foreigners, are governed by French law. [translation ER]).

227One should keep the following in mind, however: ‘That something has long been practised by Europeans is not enough for it to merit respect.’ Weatherill 2004b, p. 652. Moreover Flessner 2010, p. 134: ‘Gegen die Berufung auf den Typenzwang lässt sich zunächst dasselbe einwenden wie gegen das Argument mit den Verkehrsinteressen generell. Sie blockiert die Bewegungsfreiheit der Beteiligten viel zu pauschal, zur Wahrung eines dogmatischen Prinzips und ohne Rücksicht darauf, ob im konkreten Fall der Rechtsverkehr durch die Rechtswahl überhaupt nachteilig betroffen wäre.’

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policy as interpreted under national private law, but there is no reason to assume that it would not be covered by the public policy exception of Article 36 TFEU.228

For non-discriminatory measures, a Member State can also rely on the openended list of mandatory requirements in the public interest, as originally developed under the Cassis the Dijon case law of the CJEU.229 These justification grounds must be of a non-economic nature.230 An argument often made by property lawyers is that the application of European law to national property law could force a Member State to make changes that could disrupt the coherence of the national system of property law.231 For instance, if foreign property rights would have to be accepted under the doctrine of mutual recognition, as developed in the area of free movement of goods, the balance that is achieved at a national level through the national system of property rights could be jeopardized. It is likely that the CJEU would accept the argument regarding the coherence of the system as a legitimate aim to be pursued. It has already accepted this argument in tax law cases and insurance cases.232

Another ground for justification could be the protection of creditors. The existence of property rights outside the property rights recognized by the national systems of property law may lead to difficulties in insolvency situations. Property security rights offer the holder priority in insolvency. Partly because of this effect their creation and existence is strictly regulated. The forced recognition of a foreign property security right can lead to the forced recognition of priority. Creditors can be expected to take the existence of security rights under their own national law into account, and may even be expected to find out if their debtor has created property security rights, but they can perhaps not be expected to know about the existence and scope of foreign rights that also give priority. It would moreover be very difficult to establish ranking in the first place between property security rights created in several Member States. This line of argumentation has also been used in company law cases, where it was accepted as a ground for justification.233

These three grounds – public policy, coherence of the system and protection of creditors – seem to offer the most likely grounds for justification of a national rule of property law that hinders free movement within the internal market.234 However,

228Hartkamp 2007, p. 13; Barnard 2010, p. 151.

229Case 120/78, Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649, para. 8: ’Obstacles to movement within the Community resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.’

230Barnard 2010, p. 165-171.

231Cf Kieninger 2008a, p. 190.

232See, for instance, case C-204/90, Bachmann [1992] ECR I-249, paras. 17-28; case C-279/93, Schumacker [1995] ECR I-225, para. 40; case C-35/98, Verkooijen [2000] ECR I-4071, para. 56. See also Steiner & Woods 2009, p. 390 and Craig & De Búrca 2011, p. 696 with further references in footnote 24.

233Case C-167/01, Kamer van Koophandel en Fabrieken voor Amsterdam v Inspire Art Ltd. [2003] ECR I-10155, para 135.

234See also Akkermans & Ramaekers 2013 at II.C. Are there grounds for justification?

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even if such a ground for justification is accepted, the measure, i.e. the lex rei sitae rule in combination with the applicability of national property law that leads to the transformation or even complete loss of the foreign property right, must still pass the proportionality test.

7.1.Proportionality

The proportionality test generally consists of two elements: suitability and necessity. Is the measure suitable for the aim to be achieved and is the measure necessary in the sense that there are no less restrictive means that could achieve the same aim?235 Member States may argue that their system of property law is of public policy and that they are allowed to organize their own system of property law,236

especially because there is no coherent European system of property law yet.237 This argument may be used by Member States as a basis for their reasoning that their internal system is balanced – e.g. to protect unsecured creditors – on national property rights alone. However, an outright refusal to recognize foreign property rights may go further than necessary to achieve the aim of protecting unsecured creditors.238 Additional registration requirements might be able to serve the same purpose without the secured creditor losing his rights, thereby preventing unsecured creditors from receiving unreasonably extensive protection at the disadvantage of secured creditors.239 Such requirements could be comparable to labelling requirements often imposed by the Court in free movement of goods cases. Labelling requirements are regarded as less far-reaching than an outright refusal of access of a product to a Member State’s market.240

Swiss law provides an interesting example in this regard. Article 102(2) of the Swiss Private International Law Statute (or Bundesgesetz über das Internationale Privatrecht) provides that when an object, in relation to which a reservation of ownership has been validly established in another country, comes into Switzerland, the foreign reservation of ownership is allowed to remain in existence for three months.241 During that period, the reservation of ownership must be registered in accordance with Swiss law to comply with the Swiss requirements for a valid reservation of ownership.242 In this way, Swiss law essentially provides a ‘terme de grace’ for foreign reservation of ownership clauses.243 This example shows that there

235Craig & De Búrca 2011, p. 94.

236Wilmowsky 1996, p. 136.

237Kieninger 2008a, p. 190.

238See also Akkermans & Ramaekers 2013 at II.D. Proportionality.

239Wilmowsky 1996, p. 148-149; Case 178/84, Commission v Germany [1987] ECR 1227, para 28.

240Barnard 2010, p. 175 et seq.

241Art. 102(2) Swiss IPRG reads: ‘Gelangt eine bewegliche Sache in die Schweiz und ist an ihr im Ausland ein Eigentumsvorbehalt gültig begründet worden, der den Anforderungen des schweizerischen Rechts nicht genügt, so bleibt der Eigentumsvorbehalt in der Schweiz noch während drei Monaten gültig.’ See also Van der Weide 2006, p. 38-39.

242Art. 715(1) Swiss Civil Code (ZGB): ‘Der Vorbehalt des Eigentums an einer dem Erwerber übertragenen beweglichen Sache ist nur dann wirksam, wenn er an dessen jeweiligem Wohnort in einem vom Betreibungsbeamten zu führenden öffentlichen Register eingetragen ist.’

243Snijders 2006, p. 156; Von Bar & Drobnig 2002, No. 735; Kreuzer 1990, p. 625-626.

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already exists in practice a less far-reaching measure than an outright and immediate refusal of a foreign property right at the border.

The argument that the internal coherence of the system of property rights needs to be protected from too much European influence can also be questioned. The argument is used in social security and tax cases but will only be accepted by the CJEU if the national system is indeed applied coherently.244 When this is not the case, such a ground for justification will not be proportional to the aim pursued. Studies have shown that national systems of property law, although Member States may want to defend this, are not completely internally coherent.245 A justification on this ground is therefore not likely to be accepted.

Finally, it is also doubtful whether the argument that foreign property rights are not recognized, because creditors must be protected against unknowable rights, will hold under the proportionality test. Many Member States know, within their own system, non-possessory security rights which are not visible to the outside world because possession is not transferred. Examples are the Dutch nonpossessory pledge or the German transfer of ownership for security purposes and reservation of title clauses in general.246 Sometimes, publicity is ensured through registration, but this is not always the case. As a result, creditors already have to take into account the possibility that security rights exist without their knowledge.247 An interesting example in this regard is provided by a German judgment of the Landesgericht (LG) Bremen of 2 April 1959. The court recognized outright an American non-possessory ‘maritime lien’. It held that such recognition did not violate the German principles underlying the possessory right of pledge, given that these principles had been breached already anyway with the introduction into German law of the Sicherungseigentum.248 It is difficult to argue that having to take into account non-possessory, invisible, security rights is acceptable for domestic but not for foreign security rights, especially because publicity through registration could also be achieved for foreign security rights, albeit that a more complex system may be needed. As Flessner states, it is illogical to elevate the protection of third parties to the status of ‘Ideal’ in private international law, whereas internally the protection of third parties seems less important.249

All in all it can be concluded that, while there may be several grounds to justify that national rules of property law and the lex rei sitae (potentially) hinder free movement within the internal market, which will be accepted by the CJEU, it may be difficult for Member States to prove that these national measures are proportional to the aims they pursue. This will have to be evaluated on a case-by- case basis.

244Kieninger 1996, p. 191.

245Rutgers 1999, p. 202; Struycken 2007, p. 368 et seq; Akkermans 2008, p. 528; Verhagen 2007a, p. 38.

246Van Erp & Akkermans 2012, p. 476, Note 4 to excerpt 5.50 (E&W).

247Cf Kieninger 1996, p. 167, 181.

248LG Bremen 2 April 1959, IPRspr. 1960/1961, No. 43 as discussed and referred to by Van der Weide 2006, p. 109-110.

249Flessner 2010, p. 136.

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